LawNews- Issue 7

THIS WEEK’S ARTICLES

Issue 7 19 Mar 2021

Could better data reduce workplace deaths? P1

Kick for Seagulls: Sir Graham Lowe on prisoner rehab p3

Rape claim and a defamation suit rock Canberra p4-5

LawNews adls.org.nz

HEALTH & SAFETY LAW

Better data means fewer workplace deaths In the second of a two-part series, Rod Vaughan says poor data and analysis of workplace injuries and deaths are partly to blame for New Zealand’s high accident rate One of New Zealand’s foremost health and safety researchers says inadequate data has been a ‘serious impediment’ to cutting the alarming rate of workplace death and injury in New Zealand.

Dr Rebbecca Lilley, a senior research fellow at Otago University’s Department of Preventive and Social Medicine, says while WorkSafe has recently improved its data collection, there are still some major gaps.

Photo by Phil Walter / Staff / Getty Images

About 100 people die from workplace accidents every year in New Zealand while the economic and social cost of work-related injuries is $3.5 billion.

“Inadequate data has repeatedly been highlighted as a serious impediment to reducing workplace injury in New Zealand,” Lilley says. “We’ve been able to see there’s some quite significant blind spots within WorkSafe’s dataset, particularly around fatalities that happen on the road.

Her research reveals that road crashes are by far the single largest cause of work-related deaths.

“Very rarely do investigations look beyond the driver, the road conditions and the vehicle conditions. So, there’s definitely a blind spot around organisational aspects such as risk management or safety culture or fatigue impairing performance.

These often are not investigated in any great depth.”

Lilley says in-depth analysis of worker-related deaths and injuries is lacking, “forming a significant barrier to progressing health and safety in New Zealand. Complete, accurate data and robust analysis of these data are needed to show where preventive actions overall could address New Zealand’s high worker-fatality rates.”

She says the Work-Related Fatal Injury Study (WRFIS), funded by the Health Research Council, sought to address this well-recognised knowledge gap, using detailed coronial records to identify all

Road crashes are the biggest cause of work-related deaths in New Zealand

Various sectors still see health and safety as a worker problem rather than looking at the role of their own organisational structure in setting up their workers for safety failures fatal injury incidents due to work between 2005 and 2014.

This offered the most comprehensive and accurate evidence for targeting ways of reducing the number of work-related fatal injuries in New Zealand.

Its main findings were:

A total of 955 workers were fatally injured while working: 740 in the workplace and 215 while driving for a work purpose on a public road. These numbers are 59% higher than official New Zealand estimates of worker deaths for comparable time periods.

During this 10-year period, a 20% reduction in the rate of fatal injury in workers was achieved.

The WRFIS data, however, shows the rates of

Continued on page 2

HEALTH & SAFETY LAW

Better data means fewer workplace deaths Continued from page 1

are half those of New Zealand, official data include coronial records, meaning they capture a more complete picture of its health and safety performance.

worker fatalities vary widely and are a particularly serious problem for specific age, sex, ethnic, occupational and industry groups.

“Similar official datasets could be constructed in New Zealand to establish a comparable view of New Zealand’s performance.”

Overall, workers employed in the major occupational groupings of machinery operators and drivers and labourers had the highest risk of fatal injury. Specific occupational groups with “staggeringly” high rates of worker deaths included: mining and drilling machinery operators (129.3 deaths per 100,000 workers); fishing and deck hands (126 deaths); forestry workers (96 deaths); outdoor adventure guides (78 deaths); and air transport professionals (76 deaths).

Rates of worker fatalities increased with age.

Those aged between 70 and 84 are at highest risk in both the workplace and work-traffic environments. New Zealand’s workforce is aging rapidly and older workers are remaining in work for longer.

Māori workers had a 42% higher risk of fatal injury, with an average of 17 deaths per year.

More than half of these deaths occurred in the primary production and professional driving sectors. Recent evidence indicates Māori workers are exposed to higher levels of hazardous work than other ethnic groups, particularly in the agricultural, forestry, fisheries and transport sectors.

Lilley says various sectors still see health and safety as a worker problem rather than looking at the role of their own organisational structure in setting up their workers for safety failures.

Rebbecca Lilley

Health & Safety at Work Act Key provisions:

Unlike the old law which focused on monitoring and recording health and safety incidents, the new legislation is designed to ensure businesses actively identify and manage risks, thereby preventing incidents from occurring.

The responsibility for this is shared by the Person Conducting a Business or Undertaking (PCBU), its officers and its workers.

Lilley says the dominant causes and circumstances for fatal injuries identified by the WRFIS indicate that New Zealand is failing to learn from past fatalities and proactively apply critical controls to known fatal risks.

“There is an urgent need for further data improvements to drive targeted risk controls,” she says.

A range of significantly harsher penalties for breaches of the Act which result in the death or injury of a worker.

Under the old regulations, the top penalty was a $500,000 fine. Under the new Act, the worst breaches can attract a $600,000 fine for individuals, $3 million for companies and up to five years in prison.

“While very recent improvements to WorkSafe data by including ACC data on maritime and aviation fatalities are commendable, these data are still incomplete, contain significant blind spots and lack the rich detail to inform injury prevention offered by coronial records.”

Of particular concern, she says, is the limited inclusion of data on members of the public injured as bystanders. The WRFIS identified an additional 694 bystander deaths during the decade with

“It is much more effective to consider reducing risk through re-design of work and organisational processes, schedules or equipment to eliminate or to mitigate health and safety risks.

“Evidence also suggests a focus on safe work processes can bring about productivity improvements as well.”

Lilley says tinkering with the Health & Safety at Work Act 2015 is not necessary at this stage.

“Any suggestion of overhauling existing health and safety legislation is premature. We have yet to have had sufficient time for the legislation to be in place to build a robust, evidence-based picture of its performance over time.”

There is no doubt in her mind that the legislation meets international best practice.

“We are now at the phase, however, when enforcement of the legislation needs to be accelerated and embedded into standard WorkSafe NZ practice.

“The resulting 13 charges laid by WorkSafe NZ over the Whakaari/White Island tragedy is an encouraging example of WorkSafe NZ enforcing the provisions of the legislation.

more than 50% involving the transport, postal and warehousing sectors.

“Similar prosecutions should be made for workplace fatalities in the future, regardless of the expectation of success, to send a clear message that workplace deaths are not socially acceptable.”

In Australia, where workplace deaths per capita

Read more

LawNews

Editor: Jenni McManus

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“For example, many workplaces implement lowefficacy interventions focused on protecting the worker which rely on workers actively engaging in wearing PPE or interacting with a tool or vehicle using safety behaviours.

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LawNews Issue 7 | 19 Mar 2021

CRIMINAL LAW

Coach applies sporting principles to prisoner rehab

By Diana Clement

“[Sir Graham] talks in language they understand.

He’s ‘The Man’ and he doesn’t preach down to them. They respect him,” Dyhrberg says.

Prisoners are turning their lives around with a program introduced into New Zealand prisons by rugby league legend Sir Graham Lowe.

“This is not just some program [where] they have to tick a box and can’t identify with it. He delivers principles to them that they really comprehend and can identify with. They see others in the program having success and realise if they stick with it, they themselves can succeed. It has a high success rate.”

While he has no formal background in education, Sir Graham’s courses have taken off in prisons with more than 450 inmates graduating with NZQA Level 2 qualifications in literacy and numeracy in just over three years.

MIT general manager Manukau and city, Nuddy Pillay, says the course, which his institution teaches at Kohuora Auckland South Corrections Facility, gets the prisoners away from their cell, which is a real motivator. Attendance is 100% and pass rates 90% which, says Pillay, is very high compared to courses in the community.

The course, Kick for the Seagulls, is helping turn participants’ lives around, says senior defence lawyer and ADLS President, Marie Dyhrberg QC. The course has been offered in prisons in Ngawha, Paremoremo, South Auckland, Springhill, Hawke’s Bay, Tongariro, Manawatu, and Otago and is based on the same 12 principles that made Sir Graham’s sporting career a success.

The name Kick for the Seagulls is one of the principles he adopted after chancing upon a mother coaching her son to play football. She was instructing the boy to kick into the gap, where the seagulls had landed.

“Just imagine you’re on a local rugby or rugby league field. Your team is at one end of the field and it needs to get to the other end of the field but the [other team is] standing right in front of you, blocking you. The seagulls don’t land where all the activities are going on,” Sir Graham says.

“It’s the same when they leave prison. In real life on the outside, they’ve got somebody else in front of them that’s trying to keep them locked in that particular spot, that way of thinking and that way of life. They’ve got to get out of it. They can go back to the gangs or avoid them by kicking for the seagulls.”

Another principle is ‘let the dog see the rabbit.’ In greyhound racing, the trainer takes the dog to see the electronic rabbit before the race begins so the dog knows exactly what it has to do when the starter’s gun goes off. “[This] is exactly the same as all of us in life,” Sir Graham says. “We have plans and we know what we should be doing. We go out full of good intentions and slowly clutter starts coming into our lives.

“The principles are simple. We haven’t made it complicated because we don’t just want them to learn about them on a 17-week course. We want these principles to remain in their minds and their thinking forever.”

The course had its genesis in Northland and wasn’t aimed initially at prisons. Sir Graham had always believed his 12 principles could be used to help teach in a non-traditional way. “So initially, to try to prove the point, we ran a couple of pilot courses up in Kaitaia in the community with assistance from the police, Kaitaia College and others.”

Sir Graham Lowe

We want these principles to remain in their minds and their thinking forever NorthTec (Tai Tokerau Wānanga) delivered the first two intakes of 20 men each.

Ara Poutama Aotearoa/Department of Corrections got wind of the course and approached Sir Graham to trial it in nearby Ngawha prison. It was an instant success, he says, and was soon rolled out to more prisons.

The courses are now delivered across prisons by polytechnic staff from NorthTec, Manukau Institute of Technology (MIT), Eastern Institute of Technology, Universal College of Learning, and Otago Polytechnic. Sir Graham attends each course for the induction.

Dyhrberg says she has seen some “crappy” courses delivered in prisons but is full of praise for Kick for the Seagulls. The popular line in society, says Dyhrberg, is about treating gangs with a hard line. “But [defence lawyers] see where [prisoners] come from. We see their real issues; all the abuse that they’ve gone through and we see the potential.

“When they say you have to get tough on gangs, it never works. These kids gravitate to gangs because they don’t belong anywhere else. The gang becomes the family and we want to stop all of that.

“But you’re not going to get through to these young kids unless you speak their language and give them hope.

Student fees are waived for the prisoners, says Pillay, because MIT sees the courses as a service to New Zealand society by helping prisoners to build self-esteem.

Most of the prisoners on the program want an opportunity to get skills that make them employable. Once they have the Kick for the Seagulls Level 2 qualification, they go on to study Level 3 courses in carpentry, business, leadership or baking, also taught by MIT. Kick for the Seagulls is the beginning of an educational journey for most of them. “The certificate they get from us is probably the first time they’ve been recognised for anything in their lives,” says Pillay.

Richard Laws, prison director at Kohuora Auckland South Corrections Facility, says Kick for the Seagulls enables prisoners who have low literacy and numeracy to step up to rehabilitation programs to address their offending behaviour or take up employment opportunities offered in prison.

Laws says when Sir Graham first came to the prison in 2017 with his 12 principles, management saw the potential to promote his program with rugby league as the vehicle to support learning and develop each participant’s individual talents. The prison’s education team worked with Sir Graham’s Lowie Foundation and MIT to develop the original vision into a Level 2 foundation program, on completion.

The prison’s kaupapa has been to promote literacy and numeracy by stealth, embedding it in sport, culture or art, which have greater appeal to prisoners than the classroom, says Laws. “Men who shun maths willingly learn to average beep test scores, work out the best angle to kick a football, or the distance to the try line.”

Between 2018 and 2020, 158 men in Kohuora have graduated from Kick for the Seagulls. The latest program, with 10 men on voluntary segregation, Continued on page 12 3

MEDIA LAW

Why defamation suits are difficult to defend

By Brendan Clift

on matters of public interest, provided the media has merely reported the statement without adopting it.

Australian Attorney-General Christian Porter is suing the ABC for defamation and claiming aggravated damages.

Porter is claiming that an article published last month included false allegations against him in relation to an historical rape. A statement from his lawyer says although Porter was not named, the article made allegations against a senior cabinet minister “and the attorney-general was easily identifiable to many Australians”.

For example, the defence is probably a non-starter in cases where a news organisation reports unproven criminal allegations and the person of interest, being unnamed, is given no right of reply in the story.

Reforming defamation Changes to Australia’s defamation law are in the works. Some will help potential defendants, such as a new threshold of serious harm and tighter time limits for bringing actions.

So, how does defamation law work, what is its impact on the media, and why has Australia been labelled the defamation capital of the world?

Defamation can be defined as a false statement about a person to their discredit. The legal action has three elements for the complainant to prove: publication, identification and defamatory meaning.

Significantly, the falseness of the published material is presumed.

A statement has defamatory meaning if it would lead an ordinary, reasonable reader to think less of the complainant or if it would cause the complainant to be shunned or subjected to more than trivial ridicule.

Publication is broadly defined, including any communication to someone other than the complainant, whether written or spoken.

And identification requires reference to the complainant, which could be indirect if the ordinary, reasonable reader is able to read between the lines – as Porter is claiming in his case.

Read more: View from The Hill: Despite his denial, Christian Porter will struggle with the ‘Caesar’s wife’ test A news organisation might carefully avoid naming a person, as the ABC did, but it could still be liable if a reader would have known who that person was.

Porter was named in social media chatter around the ABC’s story; whether that sort of speculation constitutes identification is questionable, but not inconceivable.

Where a complainant’s identity is confirmed after publication – as Porter’s was when he fronted the media two weeks ago – identification becomes straightforward for later downloads of the story.

Each download is treated as a separate potential defamation under the law. At the time of writing, the ABC’s report was still on its site.

The elements of defamation are encapsulated in the expression cherished by news editors: “journalism is printing what someone else does not want printed.”

This reflects the reality that the media is exposed 4

Christian Porter

to defamation risk daily – and the risk is serious.

A complainant can sue any person involved with the story’s production, such as journalist Louise Milligan in the ABC’s case. Add the fact the complainant doesn’t need to prove any harm was actually done – and aggravated damages awards are uncapped – and it’s easy to see why defamation inspires fear among media organisations.

Available defences The defences to defamation are notoriously difficult to establish.

While the complainant need not prove the material is false, the defendant can escape liability by showing that it’s true. In the Porter case, this means the ABC would need to prove matters from more than 30 years ago raised in a letter by a woman who is now deceased.

Moreover, the defendant must prove the truth of the “defamatory stings” – the discrediting imputations that an ordinary, reasonable reader would take from the published material, regardless of whether those were the intended meanings.

Read more: Social media and defamation law pose threats to free speech, and it’s time for reform Even proving the truth of ordinary, factual reporting can be challenging in cases where journalists’ sources, such as whistleblowers, have legitimate reasons to preserve their anonymity.

These difficulties might be ameliorated if Australia had a “reportage” defence, like that of the United Kingdom. This defence excuses the media for reporting defamatory statements by third parties

Other reforms will require a wait-and-see approach, like the new public interest defence, which aims to rebalance defamation law in favour of public interest reporting but retains elements of the old reasonable publication defence.

This leaves room for courts to maintain a tough stance on what is regarded as “reasonable” media conduct when it comes to defamation. That stance recently saw NSW courts hold three Australian media companies liable for comments that were posted on their Facebook pages about a former youth detention detainee.

Read more: Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet More meaningful reform might have established stronger public interest and reportage defences, or required complainants to prove that the material published about them was false – or even that the publisher knew it to be false but published it anyway.

Defamation cases involving public figures in the United States require proof that the publisher knew the material to be false, which is why US politicians almost never sue for defamation.

In Australia, by contrast, politicians do sue – and successfully. They often opt for the Federal Court where, compared with the state courts, they are likely to have their matter heard by a judge alone, rather than having to convince a jury of the merits of their case.

Citizens and institutions seeking to hold those in power to account are too often being silenced by our current defamation laws. In a strong democracy like Australia, we can – and must – do better.

Brendan Clift is a legal researcher at the University of Melbourne The above was first published in The Conversation and is republished with permission

Photo by Paul Kane / Stringer/Getty Images

Australia does have a “reasonable publication” defence, but its requirements have proven nearimpossible for media organisations to satisfy in court.

LawNews Issue 7 | 19 Mar 2021

CRIMINAL LAW

Canberra rocked by rape claim and a defamation suit

By Jenni McManus

In a nod to transparency, open justice and the rule of law, the Federal Court of Australia this week took the unusual step of posting online the statement of claim in a defamation action brought

by Attorney-General Christian Porter against Australia’s national broadcaster, the ABC, and one of its journalists, Louise Milligan.

For the past two weeks Australia has been riveted, and deeply divided, by claims that Porter, at the age of 17, brutally raped a 16-year-old woman in January 1988 while both were participating in the world debating championships in Sydney.

The allegation first hit the public domain last November when friends of the woman, now deceased, tipped off Milligan, giving her a dossier of what were purported to be excerpts from the woman’s diaries. Milligan then produced a series of online articles for the ABC, claiming a senior (but unnamed) Cabinet minister was being accused of an historic rape, dating back 33 years.

Twitter and other social media platforms picked up the story and were quick to name Porter. Amid increasing pressure on Prime Minister Scott Morrison to sack his attorney-general and mount an independent inquiry, Porter outed himself on 3 March and vehemently denied the allegations. He is due to return to work on 31 March after a brief period of leave.

Morrison, meanwhile, is refusing to open another inquiry, saying the Australian Federal Police investigated the woman’s allegations when she contacted them last year. After discussions with the police, she decided not to lay a formal complaint and died by suicide in June 2020. Citing a lack of evidence, the police have declined to take the allegation any further.

Porter’s supporters – a large chunk of the Australian legal profession and the Coalition government – point to the absence of any physical evidence, witnesses or a confession, and the presumption of innocence.

Typical of their response is Chris Kenny, associate editor, national affairs at The Australian, who railed against left-wingers in Parliament and the media.

“The treatment of Attorney-General Christian Porter has not been merely trial by media but a deliberate, malicious and anti-democratic campaign by some journalists and their political comrades to destroy a politician and damage a government, regardless of the facts,” Kenny wrote.

“If the rule of law, natural justice and presumption of innocence can be disregarded in the pursuit of one Coalition minister, they can fall away for anyone. Those who have been cheering yet another savage pursuit of a conservative should pause to think; one day it could be them in the frame…

“They demand an extrajudicial inquiry because they are disappointed by the outcome of the criminal justice system. Their choice of extrajudicial process is motivated not by justice but by their desire to get Porter.”

In the other camp, friends of the dead woman, backed by members of the Australian Labor Party, the Greens and many in the media, continue to push for an inquiry. Thousands of women in Sydney, Melbourne and Canberra kept the pressure on by hitting the streets on Monday this week, reinforcing their demands for ‘justice’.

On the same day, Porter’s lawyers filed for defamation in the federal court against the ABC and Milligan, claiming aggravated damages and alleging malice. The ABC and Milligan say they will defend the action.

According to Porter’s statement of claim, Milligan “engaged in a campaign against Porter to harm

his reputation and have him removed as attorneygeneral”. Her articles were published without any attempt to give him the chance to respond and Milligan also failed to publicly disclose her close friendship with one or more of the complainant’s friends.

Porter’s lawyers also say the ABC and Milligan knew the allegations could never be proven in any criminal or civil proceeding “and despite that, had published the article to harm him and ensure he was publicly condemned and disgraced in the absence of any findings against him”.

Publishing the articles without naming the attorney-general was disingenuous, they say, “in order to give effect to their intent to harm him”. A public campaign designed to damage his reputation would be more effective against Porter than the “process of the justice system”.

Porter’s lawyers say he has been defamed, even though he isn’t named in Milligan’s most recent ABC articles – the ones claiming the police were notified that a letter had been sent to the Prime Minister, alleging an historic rape by a Cabinet minister in the federal government. It was clear that Porter was the target, the statement of claim says.

It also quotes from another Milligan article which claims Porter had “a reputation for making unwanted sexual advances” and had been accused of having “inappropriate” sexual relations with a female ministerial staffer. In yet another article on the ABC website, Milligan claimed former Prime Minister Malcolm Turnbull had warned Porter about his “public behaviour” with a young female staffer.

Porter says he is prepared to testify at the hearing.

His lawyers say the specific defamatory inferences are that Porter was “reasonably suspected” by the police of committing the rape and that there were reasonable grounds for suspecting it had contributed to the woman’s suicide.

A statement of defence has yet to be filed.

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seizure around media generally.

This edition covers significant cases decided since the previous edition, including: the Durie case in defamation where the courts have recognised a new defence of responsible communication on a matter of public interest; the Wall v Fairfax decision; and the fallout from the search and seizure carried out on Nicky Hager’s property which significantly impacted on the law relating to privacy and search and

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TAX LAW

Time to get talking about global tax reform

By Henry Brandts-Giesen

Photo by manx_in_the_world/Getty Images

Since the 2008 Global Financial Crisis, various tax reporting and AML/CFT compliance regimes imposed on businesses have caused the basic human right to privacy to be challenged by the proposition that transparency in relation to private wealth is essential to social justice.

A recent report from the UN High-Level Panel on International Financial Accountability, Transparency and Integrity (the FACTI panel) provides some insights into future developments in this area.

The report is significant as it includes recommendations that could eventually lead to harmonised global tax rates, public registers of beneficial ownership, unitary taxation and a global tax authority.

This was once considered a utopian pipe dream of tax justice campaigners. It has implications for privacy rights and the sovereignty of nation states.

The FACTI panel was launched in March 2020 to study the impact of tax abuse, money laundering and illicit financial flows on the ability of states to meet the UN’s Sustainable Development Goals by 2030.

Its final report calls for powerful, specific policies to be implemented in respect of tax transparency and international tax rules, and for reforms to tax authority architecture.

Country-by-country tax reporting will reveal the extent of profit-shifting by Big Tech and other multinationals

The report is significant as it includes recommendations that could eventually lead to harmonised global tax rates, public registers of beneficial ownership, unitary taxation and a global tax authority

However, the report goes further and calls for:

Specifically, the report endorses: The automatic exchange of information to ensure tax authorities are aware of their tax residents’ offshore financial accounts.

This has been happening for several years through the Common Reporting Standard, now covering all major countries except the United States. It has a few other gaps, for which the report recommends corrective measures.

Creating public registers of the people who ultimately own companies, trusts and foundations. About 80 countries now have registers for companies and others are likely to mandate such registers – and possibly expand the scope to other types of entities such as trusts.

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Country-by-country reporting to show the extent and nature of profit-shifting by multinational companies.

This is intended to prevent entities within the same multinational group from shifting profits to jurisdictions where tax will be low or zero,

regardless of where the real economic activity takes place.

Unitary taxation, which is the taxation of multinational companies on the basis of their global group profits, apportioned between the countries where their real economic activity (sales and employment) takes place.

Currently, tax authorities typically apply the arm’s- length principle in corporate taxation and use comparable market prices to ‘correctly’ assess the value of trade and income of multinationals. But, there are perceived flaws in this approach as highlighted by recent media stories about some Big Tech firms’ offshoring profits.

Global minimum tax rates to end the provision of low and zero effective tax rates. These provide the incentive for profit-shifting by multinational companies.

This harmonisation is intended to prevent arbitrage between the corporate tax rates of different countries by members of the same corporate group or related entities. However, this would also remove one of the levers that countries, particularly developing nations, use

to attract capital.

A set of reforms to the global architecture and the creation of a global tax authority to oversee the setting and enforcement of international tax rules.

This could be perceived as a direct challenge to the sovereignty of national parliaments to legislate for their own residents, although some might say the European Union, OECD and Financial Action Taskforce have been doing that for years.

The report is significant and warrants public debate, particularly given the implications for privacy rights and the sovereignty of nation states.

However, if the history of the Foreign Accounts Tax Compliance Act (FATCA) and the Common Reporting Standard are anything to go by, discussion amongst law makers might be minimal, mainly because the issues and rules are so complex that few people can understand them.

The private sector (businesses and professionals) might need to lead this discussion. Otherwise, some of these recommendations could be upon us before we have time to prepare for compliance.

Henry Brandts-Giesen is a partner at Dentons Kensington Swan

LawNews Issue 7 | 19 Mar 2021

COMPETITION LAW

Commerce Act: cartelling is now a crime

By Gary Hughes

conduct, at the relevant time. That does not require any intention to deceive or mislead or screw the market, simply to engage in the proscribed conduct.

A significant change in anticompetitive cartel law is almost upon us, after a decade’s worth of debate, policy u-turns and delayed implementation.

Statutory defences are provided in the 2019 amendments (s 82C) if the defendant believed at the time, on reasonable grounds, that one or more of the Commerce Act exceptions applied in relation to the conduct.

From 8 April 2021, engaging in cartel conduct will attract criminal sanctions under the Commerce Act 1986. Directors and officers of a business who are actively involved in collusion may in future land themselves a jail sentence.

Importantly, the defence cannot stretch to scenarios where the belief is based on “ignorance, or mistake, of any matter of law”. So, reliance on legal advice alone won’t assist.

This is the first in a series of articles to provide a refresher to busy commercial/corporate practitioners on key aspects of the law of cartels and collusion. The goal is to improve accurate issue-spotting in commercial transactions and contracts. For clients and advisers, imminent criminalisation means the stakes are now higher if straying close to such conduct.

Although the law change was passed in 2019, as the Commerce (Criminalisation of Cartels) Amendment Act 2019, the two-year lead time before implementation means it has flown under the radar, understandably buried beneath coronavirus news.

Reform process The biggest law changes have come about in two phases.

Before 2017, price fixing was illegal and already subject to heavy civil penalties in the Commerce Act. Amendments in 2017 significantly redefined and broadened the scope of what is deemed cartel conduct (in s 30A). That expressly added (to traditional price fixing) arrangements affecting supply or acquisition of goods or services by allocating markets or restricting output (including bid rigging).

Policy arguments raged about whether the campaign against cartels needed stronger criminal penalties, especially to target individual wrongdoers.

The 2017 reforms were originally supposed to include criminalisation. But after an off-again, on-again series of party-political proposals, the Labour-led government in 2019 finally made criminalisation effective.

Across the ditch Australia changed its law in 2009 towards a criminal regime. After a slow start, since 2016 we have seen more severe outcomes there, with the ACCC succeeding in criminal cases against three shipping lines, most recently a A$24 million fine against Wallenius Wilhelmsen in February 2021.

And a prosecution that recently committed to trial six high-profile bankers and their firms (ANZ, Citigroup, Deutsche Bank) looks set to be a

Exceptions The Commerce Act exceptions were restructured in the 2017 expansion of cartel conduct notions beyond price fixing.

Gary Hughes

At least three general exceptions, along with several sector or statute-specific exemptions and carve-outs, might now afford reasonable belief as a defence, covering:

blockbuster in the Federal Court.

New Zealand’s Commerce Commission is likely to begin slowly too, although there are no guarantees.

It is raising awareness through mass-market advertising and has several investigations in the pipeline that may attract attention later in 2021.

The commission will have the option to consider how each case should be addressed – by the existing civil regime seeking a pecuniary penalty or by laying criminal charges.

Temptation to go criminal may be tempered by the additional complexity of the task, such as availability of criminal defence procedures. A new iteration of its Enforcement Response Guidelines due soon should give clues on how the commission intends to approach these issues.

Nuts and bolts Potential maximum penalties are one way to grab attention. For an individual committing the new offence (s 82B) of entering into a contract or arrangement, or arriving at an understanding, that contains a cartel provision (or giving effect to one), imprisonment for up to seven years is possible. This is on par with Crimes Act fraud, money laundering and bribery offences, and can be imposed alongside a fine of up to $500,000.

For corporations, the existing penalty regime remains: $10m per offence, or up to three times the commercial gain, or 10% of group turnover.

The mens rea element that will apply is an intent to engage in one of the defined categories of cartel

collaborative activities, replacing the narrow joint venture pricing exception, where a cartel provision is reasonably necessary for a genuine collaborative activity between competitors; vertical supply agreements; and joint buying and promotion agreements.

There have been no court cases examining the interplay of the new cartel definitions and the available exceptions. However, even the commission acknowledges (in its Competitor Collaboration Guidelines, 2018) that cartel conduct can cover a wide field of activity, and “the role of the exceptions is to mitigate the potential for overreach by the cartel prohibition”.

Key legal battlegrounds in future criminal cases might include questions of whether: the conduct fits the defined categories the parties reached an arrangement or understanding

they reached that position, or “engaged in conduct”, with the requisite intent

the parties were truly “in competition with each other” in a particular market

one or other of the new 2017 exceptions (eg, “collaborative activities”) applies.

Gary Hughes is a barrister at Akarana Chambers, specialising in regulatory investigations and cases, especially dealings with Commerce Commission, FMA, SFO, Police FIU and AML/CFT supervisors Next week: price fixing 7

Bookstore A convenient, one-stop-shop for all your legal resources Visit the ADLS online Bookstore to purchase from our broad selection of texts covering a wide range of practice areas, including the latest legal titles from major publishers. Resources also include, legislation, seminar papers and legal forms. See: adls.org.nz/bookstore ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

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The ADLS Bookstore couriers nationwide.

Alternatively, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

LawNews Issue 7 | 19 Mar 2021

Collegiality Events Tauranga Sundowner Thursday 8 April | 5.30 pm - 7.30 pm Tauranga Club Sponsored by

Christchurch Lawyers’ Lunch Wednesday 14 April | 12.30 pm - 2.00pm Dux Central Sponsored by

15 April

Invercargill Sundowner Invercargill Club

12 May

Henderson Lawyers’ Lunch The Grounds

2 Jun

East Auckland Lawyers’ Lunch Goode Brothers Botany

For tickets & more information click on this page or contact us T 09 978 3970

E events@adls.org.nz

W adls.org.nz

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To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278

Featured CPD Auckland Unitary Plan: Past, Present and Future – The guide for non-specialists — FINAL NOTICE

 Seminar

In person | Live Stream Through personal or professional experience, many non-specialist practitioners will know a little bit about the AUP but perhaps not enough to understand its impact for their clients nor how to engage with Auckland Council and work with the plan. This session will provide an update for general practitioners and nonspecialists on where the AUP is at – where we’ve got to and what’s ahead.

Presenters: Phill Reid, Auckland-wide Planning Manager, Plans and Places, Chief Planning Office, Auckland Council; Corina Faesenkloet, Principal Solicitor, Legal Services – Regulatory & Enforcement, Auckland Council; Stephanie Harris, Joint Managing Partner, Glaister Ennor

CPD 1.5 hrs

Faces, Traces & Places – Identification Tech and Evidence — FINAL NOTICE

Livestream

 Mon, 22 Mar 4pm – 5.30pm

 Chair His Honour Judge Kirkpatrick, Principal Environment Judge

Livestream

Forensics never goes away! It’s everywhere and every contact leaves a trace.

In this seminar our expert panel will elaborate on the different types of identification technology and evidence that is available and being used in New Zealand such as: Key DNA case considerations and the review of the CIBS Act; Voice identification evidence – forensic voice comparison and profiling; Fingerprint evidence; and Facial recognition technology and CCTV. Presenters: Dr Anna Sandiford, Director & Expert Witness, The Forensic Group Ltd; Sue Petricevic, Barrister, Vulcan Chambers; Paige McElhinney, Expert Witness, Scientific Consultant, The Forensic Group Ltd; James Ruhfus, Video expert; Tom Coyle, Forensic Insight Presenter & Chair: Dr Viktoria Papp, Academic – Teaching and Administration, University of Canterbury; expert witness, data scientist in identity at MBIE, research associate of the New Zealand Institute of Language, Brain and Behaviour

CPD 2 hrs

A View from the Family Court Bench

 Seminar

In Person | Live Stream What do Judges want? And how can you give it to them? Focusing on the Family Court, this session will provide key insights into the workings of the registry and court, and guidance on various ways in which you can do the best job for your client.

Presenters: His Honour Judge de Jong; His Honour Judge Burns; Her Honour Judge von Keisenberg Chair: Brian Carter, Barrister, Bastion Chambers

 Tue, 23 Mar 4pm – 6pm

Livestream

CPD 2 hrs

 Tue, 30 Mar 4pm – 6.15pm

Encumbrance Instruments and Covenants in Gross – what’s the issue and where do we go from here?

 Webinar

Encumbrance instruments are a confused beast, relying on technical conveyancing rules to enable personal covenants (that is covenants that are incapable of running with the land) to be made binding in perpetuity on landowners and their successors in title. Used as a device in this way, encumbrance instruments undermine core principles of real property law, creating problems in terms of sustainable land tenure in New Zealand.

Despite recommendations for their abolishment, the Land Transfer Bill was altered prior to enactment to retain the prior use of encumbrance instruments, but with covenants in gross still being introduced.

 Wed, 14 Apr

Learning outcomes: • Understand why the common law has always insisted that personal covenants cannot “run the land”, binding successors in title.

• Understand how the use of encumbrance instruments as a device is not mirrored by comparable overseas common law jurisdictions.

• Appreciate the inconsistencies and weaknesses in the Menere judgments, and why the result in each is unsustainable.

• Understand the benefits of imposing covenants in gross under appropriate provisions in the Property Law Act 2007, enacted by the Land Transfer Act 2017.

• Consideration of further case law illuminating these problems, including the Court of Appeal judgment in Spark New Zealand Trading Ltd v Clearspan Property Assets Ltd [2018] NZCA 248 and the recent Supreme Court judgment in Synlait Milk Ltd v NZIPL [2020] NZSC 157

Leading Your Career — Exclusively for Women Lawyers with 6+ years’ PQE Take charge of your career and realise your underlying potential. This practical, interactive one-day workshop, led by one of New Zealand’s top female lawyers and one of New Zealand’s top leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career. Places are limited. Register now to avoid missing out. CPD hours: 7 hours onsite (excluding breaks) plus 1 hours’ preparatory work and completion of an online assessment.

Learning Outcomes: • Gain a real understanding of your personal values.

• Better understand your behavioural style, how to ‘read’ others and how to adapt your style to increase your influence.

• Gain insights into how to take responsibility for driving your career and how to challenge undermining self talk that erodes self-confidence.

• Gain clarity about your career purpose and create a clear career vision.

• Develop your ‘brand proposition’ – the reputation needed to realise your career vision.

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CPD 1.25 hrs 12pm – 1.15pm

 Presenters Rod Thomas, Barrister, Author and Associate Professor in Law at AUT University Thomas Gibbons, Principal, Thomas Gibbons Law

 Workshop CPD 8 hrs

 Thu, 15 Apr 8.45am – 5pm

 Facilitators Miriam Dean QC Liz Riversdale, Catapult

LawNews Issue 7 | 19 Mar 2021

CPD in Brief Cradle to Grave™ Conference 2021

 Conference

Christchurch | Auckland For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is back again in 2021. With leading presenters on a great range of pertinent and interesting topics, it promises to be another outstanding event. Early Bird offer available for bookings made by 17 April 2021.

Topics: Keynote Address: Problems in Succession Law and Options for Reform; Memoranda of Wishes; Section 182 Family Proceedings Act: Are the floodgates still open?; Conveyancing Pot Pourri; Family Property Disputes: The Best Route to Resolution; Trust Information Requests and Trustee Decision-making: Practical Suggestions from a Litigator’s Perspective; Focus on Trustees: Beneficiaries’ Rights to Information & Beddoe Orders; Spotlight on the Role of Attorney: EPAs – A Practical Focus; Trust Accounting; Trust Issues for Migrants to New Zealand Presenters: Nicola Peart, Professor Emerita; Helen McQueen, Deputy President, Te Aka, Matua o te Ture | Law Commission; Anthony Grant, Barrister, Paladin Chambers; Amanda Bradley, Partner, Duncan Cotterill; Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited; Brian Carter, Barrister, Bastion Chambers; Andrew Steele, Barrister, Princes Chambers; Richard Thompson, Barrister, Vulcan Building Chambers; Chris Kelly, Consultant, Greg Kelly Law (Christchurch); Greg Kelly, Partner, Greg Kelly Law (Auckland); Theresa Donnelly, Legal Services Manager, Perpetual Guardian; Mary Joy Simpson, Partner, Hesketh Henry; Sam Bassett, Director, Moore Markhams Chartered Accountants; Denham Martin, Lawyer, Denham Martin Tax Law. Chair: Bill Patterson, Partner, Patterson Hopkins

CPD 7 hrs

Current Contractual Issues: Pre-contractual Misrepresentation

 Mon, 3 May Christchurch 8.50am – 5.10pm

 Wed, 5 May Auckland 8.50am – 5.10pm

Livestream

This next seminar in the series will address the framework for analysing pre-contractual misrepresentation; what constitutes misrepresentation; the primacy of the written agreement and the judicial mindset; s 50 of the Contract and Commercial Law Act and “no representations” clauses; the significance of legal advice; and relief.

Presenters: Stephen Hunter QC, Shortland Chambers; Mike French, Director Law Undergraduate Programmes, Auckland University of Technology

 Tue, 4 May

Love Thy Neighbour? A guide to navigating common neighbour disputes

 Seminar

In person | Live Stream Disputes between neighbours can escalate quickly and disproportionately. On occasion, tensions build until one neighbour explodes, like one who took a chainsaw to his neighbour’s fence. Often however, disputes make their way through our courts and tribunals, with some culminating in lengthy and costly litigation (such as in the case of Aitchison v Walmsley where a dispute over a play-fort led to 4 years of litigation). Knowing how to navigate and best resolve these often heated disputes may be beneficial to all lawyers advising clients in the area. This seminar provides a guide to navigating common neighbour disputes, in the context of recent and interesting case law, and will focus on covenants, cross-leases, rights of way, boundaries and actionable nuisances.

Presenters: Andrew Peat, Barrister; David Broadmore, Partner Buddle Findlay; Mitch Singh, Partner, Glaister Ennor; Wi Pere Mita, Manager Māori Legal Services, Community Law South Auckland Chair: Geoff Hardy, Partner, Martelli McKegg

CPD 1.5 hrs 4pm – 5.30pm

Livestream

CPD 2 hrs

 Tue, 11 May 4pm – 6.15pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd

For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases.

Terms and conditions apply.

Debts, Disputes and Retentions: Recent Construction Case Law Deconstructed Wednesday 19 May | Seminar | 2 CPD hours Visit adls.org.nz for more information.

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Continued from page 3 began on 24 February this year.

The 12 principles help the men develop everyday life skills, such as planning for success, making a winning team and working with positive role models, says Laws.

Sir Graham says feedback from graduates has been outstanding. “I’ve personally, probably bumped into over 10 guys over the last couple of years and they have approached me and thanked me.”

For example, when Sir Graham stopped for a cup of coffee in Northland recently with his family, he was approached by a Seagulls graduate. “A young Māori fella got out of a car and he approached me, and he put his hand out to shake my hand and he said, ‘I just wanted to thank you. I’m a Seagull’.”

Sir Graham says the man had landed a job, although had been laid off through

LawNews Get your message in front of 5500 legal professionals.

Booking deadline is close of business on the Friday prior to publication date.

Email Darrell.Denney@adls.org.nz or call 021 936 858 to book your advertisement.

Tony Horrocks is available for locum and part-time consultancy work (flexible as to location).

Many years’ experience, both as a sole practitioner and as a partner in a small law firm, in general practice, with particular expertise in trusts, estate administration, and business law.

Contact me by email: anthonycharleshorrocks@gmail.com or on mobile: 021 754312.

no fault of his own. More importantly, the man pointed to his partner and three children in the car. “He said: ‘I’m back with my family and can you see any gang members? There’s no gang members here’.”

On another occasion, Sir Graham was watching his son play indoor volleyball in Papakura in South Auckland when a Seagull graduate tapped him on the shoulder.

“He put his hand out and said ‘I just want to say hello and thank you. Those principles are working for me every day’.” The former prisoner had found work in the textile industry and was at volleyball watching his own children play.

Sir Graham, who received a knighthood for services to youth education rather than rugby league, says the program will be available in women’s prisons in the future.

WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

Wills Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

Cherie Michelle BURNS, Late of 64 Harvest Drive, Henderson, Auckland, medical receptionist, aged 63 (died on or about 08’02’21) Kay Elizabeth Dawn DIXON, Late of 34B Abbotsford Street, Whitiora, Hamilton, retired, aged 66 (died 09’02’21)

WHAT YOU NEED TO KNOW BEFORE BUYING AN APARTMENT As more people choose to purchase an apartment to live in or to invest in, it’s important to understand how living in a body corporate can impact you and certain aspects of the way you live.

Come and hear a range of experts from the Home Owners and Buyers Association to unit title property specialists outline what you should consider before you sign a purchase agreement, including: What body corporate levies are The rules that govern living in a body corporate environment Obligations around renovations

Marie Francis SMITH, Previously resided at Brighton Road, Parnell, Auckland, married, personal assistant, aged 70 (died 05’03’21) Raewyn Ngahaka THEODORE, Late of 36 Pearl Baker Crescent, Otara, Auckland, warehouse assistant, aged 59 (died 17’11’20) Keynote Address: Chlöe Swarbrick, MP Auckland Central Saturday 27 March 10.30am – 11.30am Ellen Melville Centre, Pioneer Women’s Hall, 2 Freyberg Place Auckland Central - Closest parking at Victoria St Carpark

Entry by registration only: www.bccg.org.nz

A free one-hour presentation hosted by the Body Corporate Chairs’ Group

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Elizabeth Anne TOLLEY, Late of 5/29 Fitzroy Street, Surry Hills Sydney, 2010, divorced, disability pensioner, aged 59 (died 07’08’06) Curtis Elias Ramon ZAMBUCKA, Late of 67 Lantana Road, Green Bay, Waitakere, Auckland, never in a legal relationship, steel fixer, aged 49 (Died 18’12’20)

LawNews Issue 7 | 19 Mar 2021

Offices Available

Barrister Wanted

Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

A centrally located Chambers has a vacancy for a barrister to share resources with 6 other collegial barristers.

Handily situated in an historic building in Vulcan Lane, you are steps away from major transport links and restaurants and in close proximity to the courts & many of New Zealand’s corporate offices.

As well as a spacious office, other facilities include: a Boardroom, library, kitchen, shower and access to all technology. An onsite Office Manager is also available. Very reasonable rates are on offer to the right candidate.

All enquiries to eden@vulcanbuilding.co.nz / 09 300 1253

OUR INSOLVENCY ISSPECIALITY! Litigation support and expert and impartial advice on: » Restructures

» Liquidations

» Receiverships » Share Valuations » Fraud Analysis » Expert Witness work

CALL TODAY! 0800 343 343 GERRYREA.CO.NZ

CHARTERED ACCOUNTANTS | INSOLVENCY & LITIGATION

Top Up your CPD with ADLS before 31 March 2021 And receive bonus CPD hours Choose from 13 pre-selected 4-hour CPD On Demand Packages aligned to your area of practice and receive 2 Bonus CPD hours of On Demand to complete at no extra cost (total 6 CPD hours).

Prices: Members $295 + GST Non-members $370 + GST

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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Expressions of interest sought

Chancery Chambers offices for rent

FortyEight Shortland Barristers is a leading civil and commercial barristers’ chambers, situated in the heart of Auckland’s legal district on Shortland Street.

Two premium connected offices are available on the third floor of the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

They are available together or as separate units.

We currently have two rooms available in chambers for which we are seeking expressions of interest. One is a larger room, with expansive views over Auckland’s CBD. It would suit an existing member of the bar, or senior member of a firm looking to move to the bar. The other is a smaller room which would suit an intermediate or junior-level barrister.

All chambers facilities, including the use of a boardroom, meeting room, storage, reception, kitchen and lounge area are included. The Vero Centre includes a restaurant and cafe, gym, showers and bike storage, and carparking (at an extra charge).

The space comprises a 36.69sqm office facing Freyberg Square and an adjoining 33.71sqm office on the O’Connell Street side of the building.

Please forward expressions of interest to Mark Colthart at markcolthart@fortyeightshortland.co.nz by 31 March 2021.

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

Level 34 Vero Centre, 48 Shortland Street, Auckland 1010

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

www.fortyeightshortland.co.nz

TM

Cradle to Grave Conference 2021 7 CPD hours

The interface between trust, property and family law Christchurch 3 May

Auckland 5 May Proudly sponsored by

Prices:

Members $500 + GST | Non-members $610 + GST Early Bird offer available for bookings made by 17 April 2021.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd